New: Kompetenz-Kompetenz and Its Negative Effect — A Comparative View

By John J. Barceló

The paper deals with the “negative-effect”-of-Kompetenz-Kompetenz doctrine in some of the major arbitration venues, France, Germany, Switzerland, the U.S., England and Canada (Quebec). The negative effect doctrine refers to the circumstances under which a national court, before which a case is pending, will refrain (or not) from a full review of whether an alleged arbitration agreement (requiring arbitration of the parties’ dispute) exists as between the parties, is valid, and covers the dispute — in deference to allowing the arbitrators to decide those issues in the first instance. Although national jurisdictions universally accept the “positive” Kompetenz-Kompetenz doctrine — under which arbitrators are authorized to decide their own jurisdiction, although not with finality — they follow dramatically different approaches to the “negative-effect” issue. After canvassing and analyzing how the major jurisdictions just mentioned approach the negative-effect doctrine, the paper ...

New: Convictions of Innocent People with Intellectual Disability

By John H. Blume

In Atkins v. Virginia, the Supreme Court held that executing individuals with intellectual disability violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. In addition to concerns over culpability and deterrence, the Court’s judgment in Atkins was informed by the heightened “risk of wrongful execution” faced by persons with intellectual disability. This essay explores that question both anecdotally and quantitatively, hoping to illuminate the causes of wrongful conviction of persons with intellectual disability. We provide examples from our experiences in the Cornell Death Penalty Clinic and cases brought to our attention by defense attorneys. We also present data from the National Registry of Exonerations. Then we turn to the causes of the disproportionate wrongful conviction of intellectually disabled persons and conclude by considering implications of those causes for reform.

New: Living Apart Together as a ‘Family Form’ Among Persons of Retirement Age: The Appropriate Family Law Response

By Cynthia Grant Bowman

This article discusses the phenomenon of “living apart together,” or LAT, among persons of retirement age. LATs are committed couples who maintain separate residences. The article first explores the literature on sexuality and dating among older persons and then discusses social science research done, primarily outside of the U.S., about LAT among persons in older age groups. It then describes what was learned from the author’s own interviews of LATs over the age of 65 about their reasons for living apart, their manner of life, economic arrangements, and mutual caregiving. Based on this research, it reaches a number of conclusions about what the appropriate legal treatment of these couples should be.

REVISION: Constitutional Maturity, or Reading Weber in the Age of Trump

By Josh Chafetz

Anxiety abounds about the state of American constitutional democracy in “the age of Trump.” A wide range of commentators have raised serious and profound questions about the resilience of our political institutions and the capacity of our current political leadership.

This Essay, written for a Constitutional Commentary symposium on “Constitutional Law in the Trump Era,” attempts to get a handle on that anxiety by taking a step back and viewing our contemporary situation through a broader lens—a lens crafted in a different time and place, but responsive to a related set of political questions.

In particular, this Essay turns to the German social theorist Max Weber as a guide. Writing almost exactly a century ago, Weber offered important insights into both the institutional structures of the modern state and the character traits that constitute a successful politician. For Weber, maturity, understood in terms of balance, or the productive negotiation of the ...

REVISION: Rules, Standards, and Such

By Kevin M. Clermont

This Article aims to create a complete typology of the forms of decisional law. Distinguishing “rules” from “standards” is the most commonly attempted jurisprudential line, roughly drawn between nonvague and vague. But no agreement exists on the dimension along which the rule/standard terminology lies, or on where the dividing line on the continuum lies. Thus, classifying in terms of vagueness is itself vague. Ultimately it does not aid legal actors in formulating or applying the law. The classification works best as an evocative image.

A clearer distinction would be useful in formulating and applying the law. For the law-applier, it would be more useful if expressly focused on whether the law-giver was trying to pin things down and thus narrow the room for discretion. For the law-giver, it would be more useful if it had helped to think about how to pin things down.

This better top-level distinction divides binary from scalar directives. If the directive comprises a ...

REVISION: The Conviction of Andrea Yates: A Narrative of Denial

By Sherry F. Colb

This paper discusses the case of Andrea Yates, the woman who confessed to drowning her five children to death and was subsequently convicted of murder, (though the conviction has since been overturned). In this piece, Colb contends that Andrea Yates was convicted because of the jurors’ emotional/psychological response to the possibility that postpartum psychosis could cause an otherwise decent person to commit such brutal acts. As a symptom of denial, Colb argues, the jury rejected the insanity defense and thereby reassured itself that only evil people could do what Yates did. If that were the case, then it would be fine to continue to ignore the issue of mental illness in general and its impact on postpartum women in particular.

REVISION: Affirmative Power to Strip State Courts of Jurisdiction

By Michael C. Dorf

The very substantial literature on the scope of congressional power to strip courts of jurisdiction contains a gap: it does not discuss the source of the affirmative power of Congress to strip state courts of their jurisdiction. Laws granting exclusive federal court jurisdiction over some category of cases are necessary and proper to the exercise of the power to ordain and establish lower federal courts, but what power does Congress exercise when it strips both state and federal courts of jurisdiction? The answer depends on the nature of the case. In stripping all courts of the power to hear federal statutory claims and challenges to federal statutes, Congress exercises whatever affirmative power authorizes the substantive statute. However, Congress lacks affirmative power to strip all courts of the power to hear constitutional challenges to state laws. That conclusion is important in its own right but also complements views — such as Henry Hart’s contention that the Supreme Court ...

New: Insanity

By Stephen P. Garvey

This chapter, to be included in the forthcoming Palgrave Handbook of Applied Ethics and the Criminal Law, edited by Larry Alexander and Kim Kessler Ferzan, critically discusses the traditional law of insanity, according to which an accused is insane if, as a result of mental disease or defect, he lacks the capacity to know the law or to conform his conduct to it. It then critically discusses an alternative proposal, according to which an accused is insane if he is in some sense irrational. It is intended as a useful resource for law students and teachers.

New: From Meaning to Money: Translating Injury Into Dollars

By Valerie Hans

Legal systems often require the translation of qualitative assessments into quantitative judgments, yet the qualitative-to-quantitative conversion is a challenging, understudied process. We conducted an experimental test of predictions from a new theory of juror damage award decision making, examining how 154 lay people engaged in the translation process in recommending money damages for pain and suffering in a personal injury tort case. The experiment varied the presence, size, and meaningfulness of an anchor number to determine how these factors influenced monetary award judgments, perceived difficulty, and subjective meaningfulness of awards. As predicted, variability in awards was high, with awards participants considered to be “medium” (rather than “low” or “high”) having the most dispersion. The gist of awards as low, medium, or high fully mediated the relationship between perceived pain/suffering and award amount. Moreover, controlling for participants’ perceptions of ...

New: Areeda-Turner 'Down Under': Predatory Pricing in Australia Before and after Boral

By George A. Hay

In the only predatory pricing case in Australia to reach the High Court, the ideas and recommendations contained in the 1975 Harvard law Review article by Phillip Areeda and Donald Turner were at the heart of the case. That case, the Boral case, decided by the High Court in 2003, raised a number of interesting issues regarding whether and how the test proposed by Areeda and Turner should be employed to deal with price cuts by large firms aimed at competitors. Equally importantly, the case raised some fundamental questions about whether there was a serious “gap” in the Australian equivalent of Section 2 of the Sherman Act - Section 46 of the Competition and Consumer Act 2010, formerly the Trade Practices Act 1974 (TPA) - which made it difficult to challenge predatory conduct. Boral led immediately to some radical changes in the TPA but, even today, more than 10 years after Boral, Australians are still struggling to come up with the right statutory framework to deal with predatory ...

Update: Misdemeanor Appeals

By Michael Heise

Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one. Yet little empirical information exists on many aspects of misdemeanor prosecutions. This Article provides the first quantitative look at appellate review in misdemeanor cases nationwide. It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts review no more than eight in ten thousand misdemeanor convictions and disturb only one conviction or sentence out of every ten thousand misdemeanor judgments. This level of oversight is much lower than that for felony cases, for reasons we explain. To develop law and regulate error in misdemeanor cases, ...
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REVISION: More Contract Lore

By Robert A. Hillman

Contract lore consists of “traditional beliefs” about contract law that judges, lawyers, and scholars applying and writing about contract law, employ so routinely and confidently that the principles demonstrate how we perceive contract law today. Previously, I presented three illustrations of contract lore: First, expectancy damages put the injured party in as good a position as if there were no breach. Second, the reasons for a breach, “whether willful, negligent, or unavoidable, are irrelevant to the rules of performance and remedies.” Third, contract formation and interpretation focus on the parties’ intentions.

None of these principles are factually or historically even close to true and are nothing more than myths. For example, expectancy damages rarely if ever make the injured party whole. Important remedial rules, such as the obligation of injured parties to pay their lawyers win or lose, the bar to the recovery of prejudgment interest, the preclusion of ...

REVISION: The Employee Rights in Employer Bankruptcy Act of 2019

By Robert Hockett

The Blackjewel Coal bankruptcy of summer 2019 exposed critical weaknesses in our state-based system of employee creditor protection. Notwithstanding employees' priority over other unsecured creditors in bankruptcy, and notwithstanding a bonding requirement imposed by the State of Kentucky, Blackjewel's final round of paychecks paid to employees 'bounced,' confronting employees with imminent personal bankruptcies, forgone medical and other services, and even mortgage foreclosure and homelessness.

This proposed bill works both to aid Blackjewel employees at the time of passage and to prevent future Blackjewel incidents. It does so by (a) assigning the Department of Labor a permanent representation role in future employer insolvencies; (b) federalizing the employer bonding requirements now found only in inconsistently administered state laws; (c) establishing an Employee Liquidity Support Fund to tide employees over while bankruptcy proceedings are pending; and (d) holding ...

New: Convictions of Innocent People with Intellectual Disability

By Sheri Lynn Johnson

In Atkins v. Virginia, the Supreme Court held that executing individuals with intellectual disability violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. In addition to concerns over culpability and deterrence, the Court’s judgment in Atkins was informed by the heightened “risk of wrongful execution” faced by persons with intellectual disability. This essay explores that question both anecdotally and quantitatively, hoping to illuminate the causes of wrongful conviction of persons with intellectual disability. We provide examples from our experiences in the Cornell Death Penalty Clinic and cases brought to our attention by defense attorneys. We also present data from the National Registry of Exonerations. Then we turn to the causes of the disproportionate wrongful conviction of intellectually disabled persons and conclude by considering implications of those causes for reform.

Should Compensated Surrogacy Be Permitted or Prohibited?

By Sital Kalantry

Surrogacy provides a way for infertile people, as well as same-sex couples and single individuals, to become parents. Surrogacy is permitted in most states in the United States. In New York, however, surrogacy contracts are void and unenforceable according to a 1992 law. The Child-Parent Security Act of 2017 (the CPSA) would repeal this prohibition, make surrogacy agreements enforceable, and permit surrogates to be compensated for the gestational care they provide.

REVISION: Law in Hiding: Market Principles in the Global Legal Order

By Odette Lienau

Standing in the background of the global legal order are a range of what might be called “market principles” or “market givens”-collective presentations or beliefs about how markets work-which are treated as objective descriptions at a particular time and place. This Article argues that such market givens should be understood as a kind of “law in hiding,” shaping the policy space available to states and other actors and affecting global legal developments in important but unrecognized ways. Drawing on examples from global financial law, rules on capital mobility, and sovereign debt practices, I demonstrate how market principles can provide the real substantive content for conventionally recognized law, effectively counter official law, and act as powerful rules in the absence of clear legal standards. I further consider why “law” is a suitable categorization for these market principles, adopting a broad definition that derives from and pushes forward recent international legal ...

REVISION: Chapter 1: Reasonable Royalties

By Oskar Liivak

This chapter:

(1) describes the current state of, and normative basis for, the law of reasonable royalties among the leading jurisdictions for patent infringement litigation, as well as the principal arguments for and against various practices relating to the calculation of reasonable royalties; and

(2) for each of the major issues discussed, provides one or more recommendations.

The chapter’s principal recommendation is that, when applying a “bottom-up” approach to estimating reasonable royalties, courts should replace the Georgia-Pacific factors (and analogous factors used outside the United States) with a smaller list of considerations, specifically:

(1) calculating the incremental value of the invention and dividing it appropriately between the parties;

(2) assessing market evidence, such as comparable licenses; and (3) where feasible and cost-justified, using each of these first two considerations as a “check” on the accuracy of the other.

REVISION: Election Interference: The Real Harm and The Only Solution

By Jens David Ohlin

Although politicians and intelligence analysts have criticized Russian interference in the 2016 and 2018 elections, international lawyers seem to be at a loss for how to understand the particular harm posed by this interference. In addition to the hacking of email accounts and disclosure of private information, the most salient aspect of the interference was the use of social media platforms, including Twitter and Facebook, to sow division and heighten nativist tendencies within the electorate. Strictly speaking, the goal of the 2016 interference was to delegitimize a potential Clinton presidency or to help elect Donald Trump as president. But far more important was the method used to accomplish these goals: the impersonation of American citizens during participation in the political process. This latter development points to the real harm of election interference, which has less to do with sovereignty and more to do with the collective right of self-determination. Foreign ...

New Tech v. New Deal: Fintech As A Systemic Phenomenon

By Saule T. Omarova

Fintech is the hottest topic in finance today. Recent advances in cryptography, data analytics, and artificial intelligence are visibly "disrupting" traditional methods of delivering financial services and conducting financial transactions. Less visibly, fintech is also changing the way we think about finance: The rise of fintech is gradually recasting our collective understanding of the financial system as simply another sphere of normatively neutral information technology and objective computer science.

REVISION: Land Use Regulation (Second Edition)

By Eduardo M. Peñalver

This casebook offers a concise, user-friendly presentation of land use law which incorporates a focus on critical thinking and practice throughout. The casebook devotes an entire chapter to complex and realistic scenarios that provide students an opportunity to bring to bear what they have learned throughout the semester to solve challenging legal and strategic problems. New materials in the second edition ensure that students will become familiar with the latest trends in land use law. Attached is the table of contents.

New: Gains, Losses, and Judges: Framing and the Judiciary

By Jeffrey J. Rachlinski

Losses hurt more than foregone gains—an asymmetry that psychologists call “loss aversion.” Losses cause more regret than foregone gains, and people struggle harder to avoid losses than to obtain equivalent gains. Loss aversion produces a variety of anomalous behaviors: people’s preferences depend upon the initial reference point (reference-dependent choice); people are overly focused on maintaining the status quo (status quo bias); people attach more value to goods they own than to identical goods that they do not (endowment effect); and people take excessive risks to avoid sure losses (risk seeking in the face of losses). These phenomena are so pervasive that legal scholars have assumed that they influence the development of law. Although numerous studies reveal that framing influences how ordinary people think about their rights, a clear demonstration that judges decide cases differently when the underlying facts present gains as opposed to losses does not exist. This Article fills ...

REVISION: Constitutionalism and the Foundations of the Security State

By Aziz F. Rana

Scholars often argue that the culture of American constitutionalism provides an important constraint on aggressive national security practices. This article challenges the conventional account by highlighting instead how modern constitutional reverence emerged in tandem with the national security state, functioning critically to reinforce and legitimate government power rather than simply to place limits on it. This unacknowledged security origin of today’s constitutional climate speaks to a profound ambiguity in the type of public culture ultimately promoted by the Constitution. Scholars are clearly right to note that constitutional loyalty has created political space for arguments more respectful of civil rights and civil liberties, making the very worst excesses of the past less likely. But at the same time, public discussion around protecting the Constitution – and with it a distinctively American way of life – has also served as a key justification for strengthening the ...

REVISION: Affirmative Action in Higher Education Over the Next Twenty-Five Years: A Need for Study and Action

By Stewart J. Schwab

Affirmative action in higher education remains controversial and vexing. Few people argue that consideration of race in college or law-school appli­cations would be the best policy in an ideal world. In that world, skin color would be treated like eye color (or perhaps like one's religion, whose differ­ences the ideal world would tolerate and celebrate but not rank invidi­ously). In today's America, however, race still matters in painful ways.

REVISION: The Rationality of Promising

By Emily L. Sherwin

This essay first examines various conceptions of promissory obligation, which suggest a range of possible benefits associated with promising. Theories of temporally extended practical rationality suggest that to obtain benefits of this kind, it may be rational for a promisor to treat his or her promise as binding. The difficulty is that, whatever practical and normative benefits binding promises may have, it will not always be epistemically rational for the promisor to perform. Thus, to the extent that markets rely on binding promises, they rely on an element of irrationality in human decision-making.

REVISION: World Trade and Investment Law in a Time of Crisis: Distribution, Development and Social Protection

By Chantal Thomas

World trade and investment law is in crisis: new and progressive ideas are needed. Rules that facilitated globalization and supported global economic growth are being challenged. A system of global governance that once seemed secure is now at risk as the US ignores the rules while developing countries struggle to escape restrictions. Some want to tear global institutions and agreements down while others try desperately to maintain the status quo. Rejecting both options, we convened a group of trade and investment law experts from 10 countries South and North who have proposed ideas for a new world trade and investment law that would maintain global growth while distributing costs and benefits more fairly. This essay frames the issues and introduces the volume. We look at the impact of trade and investment law on the global distribution of resources, and pay special attention to those who have suffered from trade dislocation and to restrictions that have hampered innovative growth ...

New: Why Sub-State Groups Are Endowed with Rights

By Laura Underkuffler

When should international law recognize sub-state groups and, consequently, their demands? Surprisingly, in the new and vast literature dealing with the questions of sub-state groups and their rights in international law, there is little discussion of this question. Usually it is assumed that certain cultural, racial, or religious groups qualify for international recognition, and others (implicitly) do not. Those scholars who have more deeply studied this question generally identify general abstract criteria for group-rights recognition, such as the permanency and involuntariness of group identity, the importance that members of the group ascribe to group identity, the numerical inferiority of group members, and so on. In this chapter, the author concludes that the identification of such abstract criteria for sub-state group qualification is of limited usefulness, and can exclude otherwise deserving groups. Rather, the recognition of a sub-state group as a rights-bearing entity is ...

REVISION: Technological Solutions to Human Error and How They Can Kill You: Understanding the Boeing 737-Max Products Liability Litigation

By W. Bradley Wendel

Technology often promises increased safety in the form of reduction of human errors. However, there is a dynamic relationship between technological solutions to risks and human behavior. The attempt to design out a persistent pattern of accidents caused by human error can lead to a new, perhaps unanticipated, and possibly even more dangerous pattern of accidents caused or exacerbated by the technology. For this reason it is essential that products liability law proceed from a systems approach, not considering product design and user error in isolation. This article argues that a systems approach to accidents involving technologically advanced products, taking into account the relationship between product design and foreseeable carelessness by users, is essential to ensuring that the law of products liability does not have a negative impact on the underlying goals of this area of law, including the promotion of increased user safety, innovation in product design, and the affordability ...

REVISION: The Nonprime Mortgage Crisis and Positive Feedback Lending

By Charles K. Whitehead

The “great recession” of 2007–2009 was sparked by a bubble in U.S. housing prices, driven in turn by a bubble in nonprime mortgage lending. We collect evidence that the risk of a nonprime housing bubble (not the certainty, but a meaningful risk) should have been obvious to the main participants in the markets for nonprime lending and related mortgage-backed securities (nonprime MBS), including originators, securitizers, rating agencies, money managers, and institutional investors. Those who did not see the risk were, in many cases, willfully blind. We also discuss the strong positive feedback nature of typical nonprime mortgages. This positive feedback made it highly likely that, if nonprime housing prices flattened, let alone fell, they would soon crash and take many nonprime MBS with them. We discuss regulatory responses that might limit positive feedback lending, cause the next bubble to be smaller and less likely, and make the post-bubble aftermath less painful.